Family law

By David Burrows, David Burrows, Bristol

Welfare of children not paramount in charging order enforcement

Wells v Pickering (2002) The Times 4 June, David Oliver QC, deputy High Court judge in Chancery Division

This case concerned an application to enforce a charging order under the Rules of the Supreme Court 1965.

Order 88 of those rules requires that all persons in possession of the property - to the knowledge of the claimants - should be referred to in the claimant's witness statement.

The fact that the interests of children were not specifically mentioned in the statement and their interests referred to in the rule lead the court to the conclusion that there was no duty on the court to consider the welfare of affected children.

The policy that creditors must have their debts paid should prevail.

Conduct and ancillary relief

B v B (Financial Provision: Welfare of Child and Conduct) [2002] 1 FLR 555

B v B is a rare case where conduct - abduction of a child to Sicily, and serious attempts to hide assets and to mislead the court by the husband - was taken into account by the court.

Mr Justice Connell took the view that, even in a relatively short marriage, the husband's conduct was such, coupled with the needs of a child of the family, that the district judge had been justified in ordering a transfer of a house to the wife.

Furthermore, the conduct of the husband justified the court in refusing to order a charge-back in the husband's favour (see Bechmarks, page 41).

Wife's signature procured by husband's fraud

UCB Corporate Services Ltd v Williams (2002) The Times, 27 May, CA

In UCB v Williams the Court of Appeal found that where a husband persuaded his wife to sign a charge deed by fraudulent misrepresentation - the report does not relate what he said to her to get her to sign - she could set aside the charge as against him.

It did not matter that, but for the fraud, she might still have executed the charge.

The fact that the fraud deprived her of the choice of whether or not to sign enabled her to set aside the deed.

The question of whether or not the bank was fixed with notice of the husband's undue influence (which would enable the wife to set aside the charge against them also) was a matter to be remitted back to the first-instance court.

Children of asylum-seeking mother can be returned home

Re S (Children) (Child abduction: Asylum appeal) (2002) The Times, 3 June, CA

In Re S a mother had brought children (sons aged four and three) to this country on holiday from India.

While here, she decided to stay and claimed asylum.

Mr Justice Bennett, exercising the court's wardship jurisdiction (India has not signed the Hague Convention), ordered the return of the children.

The Court of Appeal confirmed his order and, in so doing, considered the inter-relationship of the court's child abduction jurisdiction in the context of a parent who was claiming asylum.

Section 15 of the Immigration and Asylum Act 1999 (which prevents removal from the jurisdiction of anyone who is seeking asylum) does not affect the position of the children, said the court.

Section 15 is intended to prevent deportation by the state, not to inhibit a family court's jurisdiction to return children when their interests demanded it.

The children had not themselves applied, nor had the mother on their behalf - they were merely listed as dependants in the mother's application.

A family judge would, in any event, always take into account possibilities of persecution in the receiving country, when considering the best interests of children.

Appeals - LSC guidance

The Legal Services Commission will be re-issuing guidance for dealing with appeals for funded clients (paragraph 58 of section 22.2 of the funding code guidance).

Initially, funding will be available only to the paper stage of an appeal.

If a funded client wishes to renew a refused paper application before the full court emergency legal aid may be available provided that documents have been submitted to the commission - a note of the decision appealed against, the court's written reasons for refusing permission and an explanation (or counsel's opinion) as to why the appeal should proceed.

The regional office will assess prospects of success on the prospects of the appeal as a whole, not whether permission is likely to be granted.

Time limits in the Court of Appeal are tight and if an amendment is refused and an appeal before the Funding Review Committee cannot be arranged in time, an 'application must be made to the court to extend' its time limits.

There is no rationale for a very short (14-day) limit for appeals.

It means we must all move quickly; there is little time for mature reflection, and still less if application (with counsel's opinion) must be made for legal aid.

The potential for needlessly increased costs and the deleterious effect for possible conciliation have been completely ignored by those who drafted the rule.

Add to this the fact that all time limits are short at the time of giving notice of appeal but lengthen dramatically once the appeal is awaiting a listing.

The process may be an administrator's dream; but it shows little sensitivity to the parties and their representatives.

Postscript

For those puzzled by the Court of Appeal's decision in Cordle v Cordle [2002] 1 FLR 207, CA, it should be noted by those with ancillary relief appeals pending from district judges (under rule 8.1 of the Family Proceedings Rules 1991) that Judge Darwell-Smith in Bristol County Court has directed an appeal to go direct to the Court of Appeal (section 57 of the Access to Justice Act 1999).

The leap-frog appeal is on the limited issue of whether or not rule 8.1(3) of the Family Proceedings Rules 1991 can be overridden by a subsequent Court of Appeal decision.

Incidentally, as long ago as 1991 (see Rickards), the Court of Appeal recommended that cases sent up to resolve an important issue should be state-funded.

Enquiries will no doubt be made as to whether resolving the Cordle point can be covered in this way; though the appellants and their advisers should probably not hold their breath.